행정구제법

제1장 행정구제법 개관 ·········································································· 13
제1절 행정구제의 의의 ············································································ 15
제2절 행정구제제도의 기능과 체계 ······················································· 15
제2장 행정소송 ······················································································· 19
제1절 행정소송의 의의 및 종류 ····························································· 21
제1항 행정소송의 의의 및 근거 ························································· 21
제2항 행정소송의 종류 ········································································ 21
제2절 소송요건 ························································································· 33
제1항 대상적격 ····················································································· 34
제2항 원고적격 ····················································································· 77
제3항 협의의 소익 ············································································· 100
제4항 피고적격 ··················································································· 118
제5항 예외적 행정심판전치주의 ······················································· 127
제6항 제소기간 ··················································································· 132
제3절 가구제 ·························································································· 151
제1항 개설 ·························································································· 151
제2항 집행정지 ··················································································· 151
제3항 민사집행법상 가처분의 허용 여부 ········································ 168
제4절 행정소송의 심리 ·········································································· 171
제1항 심리의 내용 및 범위 ······························································ 171
제2항 심리의 제원칙 ········································································· 174
제3항 심리의 제절차 ········································································· 176
제4항 주장책임과 입증책임 ······························································ 195
제5항 위법성 판단의 기준시점 ························································· 197
제5절 행정소송의 판결 ·········································································· 202
제1항 판결의 종류 ············································································· 202
제2항 판결의 효력 ············································································· 213
제3장 행정상 손해배상(국가배상) ····················································· 231
제1절 개관 ······························································································ 233
제2절 공무원의 직무상 불법행위로 인한 손해배상책임 ···················· 238
제1항 의의 ························································································ 238
제2항 배상책임의 성질 및 공무원의 배상책임 성립 여부 ············ 238
제3항 배상책임의 성립요건 ······························································ 242
제3절 영조물의 설치 또는 관리상 하자로 인한 손해배상책임 ········· 279
제1항 영조물의 개념 ········································································· 279
제2항 영조물의 설치 또는 관리상 하자 ·········································· 279
제4절 배상책임자 ··················································································· 291
제1항 피해자에 대한 배상책임자 ····················································· 291
제2항 종국적 배상책임자 ·································································· 292
제5절 이중배상제한규정 ········································································ 296
제1항 의의 ·························································································· 296
제2항 적용요건 ··················································································· 296
제3항 국가 등에 대한 구상권 행사의 문제 ···································· 297
제4장 행정상 손실보상 ········································································ 301
제1절 행정상 손실보상의 의의 및 근거 ·············································· 303
제1항 행정상 손실보상의 의의 ························································· 303
제2항 행정상 손실보상의 근거 ························································· 303
제2절 행정상 손실보상의 요건 ····························································· 310
제3절 행정상 손실보상의 기준·내용·방법 ············································ 311
제1항 대물적 보상 ············································································· 311
제2항 생활보상 ··················································································· 313
제4절 보상결정 및 불복의 절차 ························································· 316

[ 저자서문 ]

이 책은 지난 2017년 2월 출간된 초판의 제1차 개정판으로서, 최신판례, 관련 법률의 개정사항 및 시험의 출제경향을 반영함과 동시에 초판의 부족한 점을 수정?보완하기 위해 집필되었다. 특히 학생들의 정확한 이해를 돕기 위해 본문의 서술내용을 보강하거나 추가하고 일부 핵심판례에 대한 보충설명을 수록한 것이 특징이다. 이론과 판례의 입장에 대한 간결하고 명쾌한 서술을 지향하면서 행정법의 체계적인 학습을 강조하는 당초 기획의도를 유지하는 한편, 책의 완성도와 수험적합성을 제고시키려 노력했다. 로스쿨에서 강의하면서 학생들에게 행정법공부는 늘 어렵다는 것을 실감하고 있다. 외부인은 상상하기 어려울 정도로 과중한 학습 부담에 직면한 로스쿨학생들은 민사법과 형사법에 비해 상대적으로 주변과목으로 취급되는 행정법의 기초학습을 위해 정도(正道)를 가기 보다는 쉬운 지름길을 찾는 것이 평균적이다. 학원교재나 학원 강의에 지나치게 의존하면서 투자시간을 최소화하고 단순암기에 치중하는 학생들이 의외로 많다는 사실을 보고 놀랄 때가 많다. 변호사시험의 합격률이 50％ 내외로 떨어진 이후 모든 과목에서 균등한 점수를 취득하지 않고서는 합격할 수 없다는 현실을 고려할 때 이러한 학생들의 공부 자세는 너무나 위험천만한 것이어서 심히 우려스럽다. 시간부족의 문제 외에도 공동체개념을 전제로 한 공법 특유의사고와 실체법, 절차법, 소송법 간 유기적인 이론체계를 갖는 행정법은 초학자의 입장에서 보면 낯설고 난해하다. 하지만 인생사가 그렇듯 지름길은 없다. 정도를 가기 위해 노력하면서 경험과 지식을 축적할 때에만 해답을 얻을 수 있고, 그토록 원하는 성취가 가능하다. 이렇게 얘기하는 것은 내가 요즘 시쳇말로 꼰대이어서가 아니고, 현실감각이 결여된 이상주의자이기 때문도 아니다. 중요과목의 수강과 연계하여 기초학습을 충실하게 하는 것만이 행정법을 적어도 시험의 차원에서 정복할 수 있는 유일한 방법 - 즉, 정도 - 이라는 변함없는 사실을 학생들이 깨달았으면 하는 바램이다. 그리고 이 책이 지난(至難)한 행정법공부의 여정에서 큰 도움이 되는 동반자가 되었으면 한다.

소송요건이란 수소법원이 본안판단을 하기 위한 전제요건을 의미하는 것으로 요건심리의 대상이 된다. 항고소송의 적법요건이라고도 한다. 소송요건이 흠결되면 부적법한 소송이 되어 각하판결의 사유가 된다. 소송요건의 존부는 법원의 직권조사사항에 해당하며, 그 존부에 대한 판단의 기준시점은 일반적으로 소 제기 시가 아니라 사실심 변론종결시(판결시)가 된다. 소송요건을 요구하는 것은 불필요한 소송을 배제하여 법원의 심리부담을 경감시킴으로써 충실한 심판을 도모하기 위한 사법정책적 필요성에 근거한 것이다. 하지만 공익성을 갖고 있는 행정소송에 있어서 소송요건을 엄격하게 해석하면 헌법상 국민의 재판청구권을 지나치게 제약하고 법치국가의 원리를 형해화시킬 수 있다는 점에서 소송요건에 대한 판단은 단순한 법기술적 개념의 해석이 아니라 행정통제의 적정한 범주 설정에 의해 국민의 권리구제기회의 실효적 보장이라는 헌법적 가치를 실현하는 중요한 기능을 수행한다.